Citation Nr: 18144840 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-12 469A DATE: October 25, 2018 ORDER Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to a rating in excess of 60 percent for coronary artery disease, status post angioplasty with stent, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s obstructive sleep apnea was incurred in service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from November 1963 to November 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision, which continued the 60 percent rating for status post myocardial infarction (heart disability) and denied entitlement to service connection for sleep apnea and a TDIU. Entitlement to service connection for obstructive sleep apnea Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran asserts that his obstructive sleep apnea was incurred in service. The Veteran has been assessed with obstructive sleep apnea. See e.g., 02/14/2014 Medical Treatment Record- Non- Government Facility. Thus, a present disability has been established by the evidence. Furthermore, during his March 1984 examination and November 1985 separation examination he reported frequent trouble sleeping. He submitted statements from his military colleagues, D.P. and C.S. D.P. indicated that he has known the Veteran for over 35 years and they were stationed together in service. While in service they slept in the same compartment and D.P. observed the Veteran snoring loudly with short periods of not breathing. C.S. indicated that he was stationed with the Veteran from 1968 to 1970. They slept in the same bunk room and he witnessed the Veteran snoring loudly and would have to wake him up when he stopped breathing. As such, in-service incurrence has been shown by the evidence. The remaining question is whether the Veteran’s obstructive sleep apnea is related to service. The Veteran submitted statements by his treating physician, J.L., M.D., dated in October 2013, November 2014, and March 2016. Dr. J.L. assessed the Veteran with obstructive sleep apnea and concluded that he suffered from symptoms and complications of obstructive sleep apnea during the period of his active military service and service connection for obstructive sleep apnea is warranted. The examiner reasoned that the Veteran reported snoring and fatigue during his time of active duty service and his wife confirmed that he suffered from chronic snoring and apneic episodes since his early days in the service. Furthermore, Dr. J.L. indicated that obstructive sleep apnea does not begin suddenly and is known as a chronic condition that takes place over the course of an individual’s life. The overnight polysomnogram, which formally diagnosed the Veteran’s obstructive sleep apnea, is the more accurate and gold standard procedure to diagnose an individual with sleep apnea and was not provided to the Veteran while he was on active duty. Accordingly, Dr. J.L. opined that the development and progression of obstructive sleep apnea more likely than not occurred during the time of the Veteran’s active duty military service. The Veteran underwent VA examinations in April 2014, January 2016, and December 2016. The examiners concluded that the Veteran’s obstructive sleep apnea was not incurred in service. They reasoned that he was diagnosed with moderate obstructive sleep apnea in 2012, which was 27 years after he retired from the military. Given the time span between service and diagnosis, the lack of documented obstructive sleep apnea in service, and his obesity which is a known risk factor, the examiners concluded that it was less likely than not that the Veteran’s obstructive sleep apnea was incurred in service. Furthermore, the January 2016 examiner concluded that the Veteran’s sleep apnea was not proximately due to or aggravated by his coronary artery disease. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current obstructive sleep apnea was incurred in service. In this regard, there is ample evidence indicating that the Veteran suffered from snoring and sleep disturbances in service, which was confirmed by two of his military colleagues. Furthermore, Dr. J.L. concluded that the Veteran developed obstructive sleep apnea in service, which progressed post-service, based on the Veteran’s service-treatment records and statements by the Veteran, military colleagues, and wife. The Board acknowledges the negative opinions provided by the October 2013, November 2014, and March 2016 examiners. However, the Board gives more weight to his treating physician’s opinions, Dr. J.L. In this regard, Dr. J.L. more closely considered the record, including lay statements, his service-treatment records, and medical evidence, and has examined the Veteran for over 6 years. Based on the above evidence, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the evidence is in equipoise and the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea is warranted. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to a rating in excess of 60 percent for coronary artery disease is remanded. The Board also finds that additional evidentiary development is required prior to adjudicating the claim of a rating in excess of 60 percent for the Veteran’s service-connected coronary artery disease, status post angioplasty with stent, myocardial infarction (heart disability). The Veteran was afforded a VA examination to assess the severity of his heart disability in April 2016. He subsequently indicated that he had two additional coronary stents placed in November 2016. Furthermore, the Veteran, by counsel, indicated that his heart disability had worsened in severity in a statement dated in May 2018. Given these statements, along with the fact that the last examination was conducted over two years ago, the Board finds that the April 2016 VA examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of the Veteran’s heart disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a Veteran claims the disability is worse than originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Accordingly, a remand is necessary in order to afford the Veteran an additional VA examination to adequately assess the current severity of the Veteran’s heart disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran asserts that he is unable to maintain substantially gainful employment due to his service-connected heart disability. Accordingly, the Board finds that the issue of entitlement to a TDIU is intertwined with the present claim for an increased rating for his heart disability and will defer adjudication. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from August 2017 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected heart disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion and such review should be noted in the examination report. Exercise stress testing should be conducted, if appropriate. The examiner must indicate whether dyspnea, fatigue, angina, dizziness, or syncope are produced at workloads of (1) three or less METs, (2) greater than three, but less than five METs, (3) greater than five, but less than seven METs, (4) greater than seven, but less than ten METs, or (5) greater than ten METs. If a laboratory determination of METs by exercise stress testing cannot be done for medical reasons, the examiner should provide an estimate of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope. The examiner also should indicate whether the Veteran’s heart disability requires continuous medication; whether there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; whether there is evidence of chronic congestive heart failure; whether there is evidence of acute congestive heart failure within the last year and, if so, whether there was more than one episode; and whether there is any left ventricular dysfunction and provide the ejection fraction percentage. In addition, the examiner should discuss the impact of the Veteran’s service-connected heart disability on his ability to work. Specifically, the examiner should discuss the impact of his heart disability on his ability to work as a meat cutter or similar job. The examiner should identify any limitations imposed by the Veteran’s service-connected heart disability. (Continued on the next page)   The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel